Hassani Mwambaga vs Republic (Criminal Appeal No. 410 of 2013) [2014] TZCA 2195 (9 May 2014)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: RUTAKANGWA. J.A.. BWANA. J.A.. and MANDIA. J.A.^ CRIMINAL APPEAL NO. 410 OF 2013 HASSANI MWAMBANGA ......................................... ...... APPELLANT VERSUS THE REPUBLIC..........................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Chocha, J.l dated the 21s t day of May, 2013 in Criminal Appeal No. 47 of 2010 JUDGMENT OF THE COURT 5th & 9th May, 2014 RUTAKANGWA. J.A.: The appellant was arraigned before the District Court of Mbarali District on a charge of rape c/s 130 (2) (e) of the Penal Code. He denied the charge and a full trial followed. At his trial three witnesses testified on the prosecution side. These were, PW1 Nerry Msiani (the prosecutrix), PW2 Anchilla Godfrey, and PW3 Generose Sada. The appellant was the sole defence witness and vigorously protested his innocence. The learned trial Principal District Magistrate found the prosecution case proved to the requisite standard and

declared the appellant guilty. Without convicting the appellant, he proceeded to sentence him to thirty (30) years imprisonment. Aggrieved, he purported to appeal to the High Court against "conviction" and sentence. The High Court (Chocha, J.) sitting at Mbeya, dismissed his appeal, hence this appeal. The appellant's memorandum of appeal to this Court, contains eight (8) grounds of the complaint. However, given the order we intend to make, we have not found it helpful to attempt to enumerate them, even in a summary form. We shall elaborate why, shortly. To prosecute the appeal, the appellant appeared before us in person, fending for himself. He had no additional grounds of appeal and opted to say nothing in elaboration of the grounds of appeal on record. He, nevertheless, reserved his right to respond to the respondent Republic's submission, in the event the appeal was resisted. For the respondent Republic, Mr. Stambuli Ahmed, learned State Attorney, appeared. He supported the appeal, but for a reason totally different from the litany of complaints found in the memorandum of appeal. It was his contention that the decisions of the two courts below

were unsustainable on account of one glaring incurable error committed by the trial court which went unnoticed in the High Court. The trial court, he correctly argued, did not convict the appellant of any offence. This, he convincingly argued, was contrary to the letter and spirit of section 235 (1) of the Criminal Procedure Act, Cap 20 R.E. 2002 (the CPA). He accordingly urged us to invoke our revisional powers under s. 4 (2) of the Appellate Jurisdiction Act, Cap 141, to quash and set aside the inconclusive judgment of the trial court, the imposed sentence of imprisonment, as well as the proceedings in and the judgment of the first appellate court and make the necessary orders. The appellant, visibly gladly accepted Mr. Ahmed's submission. Admittedly, the trial court did not convict the appellant. This glaring error, as rightly contended by Mr. Ahmed, was a flagrant violation of s. 235 (1) of the CPA, which reads thus:- ’T/fe Court, having heard both the complainant and the accused person and their witnesses and the evidence, shall convict the accused and pass sentence upon or make an order against him

according to law or shall dismiss the charge under section 38 o f the Penal Code." [Emphasis is ours]. As is abundantly clear from the above statutory provision, no sentence can be passed or imposed on an accused person unless and until he or she has been duly convicted of a particular offence. This was lucidly stated by this Court in the case of Khamis Rashid Shaban v. R., Criminal Appeal No. 184 of 2012 (unreported), which was cited and followed by this Court in the case of Matola Kajuni and 2 Others v. R., Criminal Appeals No. 145 - 7 of 2011 funreported), which was cited to us by Mr. Ahmed. What then are the legal consequences, where no conviction is entered by the trial court? The answer to this pertinent question is found in a plethora of the Court's decisions on the issue. The Court has persistently maintained that "it is imperative upon the trial District courts to comply with the provisions of s. 235 (1) of the Act by convicting the appellant after the magistrate was satisfied that the evidence on record established the prosecution case against him beyond reasonable doubts": Aman Fungabiliasi v. R., Criminal Appeal No. 270 of 2008 (unreported). In this latter case, the Court succinctly stated that "in the absence of 4

conviction, it follows that one of the prerequisites of a true judgment in terms of section 312 (2) of the Act are missing." We wholly subscribe to this holding. See, also, Jonathan Mluguani v. R., Criminal Appeal No. 15 of 2011, Shabani Iddi Jololo and Another v. R., Criminal Appeal No. 200 of 2006, Ruzibukya Tibabyekomya v. R. Criminal Appeal No. 218 of 2011, Juma Jackson @ Shida v. R., Criminal Appeal No. 254 of 2011, etc (all unreported). From all these decisions, it is now settled law that failure to enter a conviction by any trial court, is a fatal and incurable irregularity, which renders the purported judgment and imposed sentence a nullity, and the same are incapable of being upheld by the High Court in the exercise of its appellate jurisdiction. That being the law, we have to acceed to the prayer of Mr. Ahmed without any reservations. We accordingly invoke our revisional powers to quash and set aside the so called judgment of the trial court and the sentence of imprisonment. As a necessary consequence, we also quash and set aside the proceedings in and judgment on appeal of the High Court. We remit the record of the trial court to it to compose a proper judgment by entering a conviction and sentence the appellant accordingly. In the interests of justice we direct that the prison sentence should begin

to run from the day of the initial incarceration, that is, from 30th December, 2008. In the meanwhile, we order the appellant to continue being detained in custody. It is so ordered. DATED at MBEYA the 7th day of May, 2014. E.M.K. RUTAKAN GWA JUSTICE OF APPEAL SJ. BWANA JUSTICE OF APPEAL W. MANDIA JUSTICE OF APPEAL I certify that this is a true coipy of the original. F.J. Kabwe DEPUTY REGISTRAR COURT OF APPEAL